Chapter
Five:
A Bill of Rights: The Ultimate in Participation, or an Immature
Stage in our Development?

Hon. Gary Johns

"A bill of rights is what the
people are entitled to against every government on earth, general
or particular and what no just government should refuse to rest
on inference". (Thomas Jefferson, December, 1787 --- as the
First Fleet was sailing along the east coast of Australia).

Has Australia missed the boat on a Bill
of Rights as the vehicle to achieve a just society? Yes and no.
Yes, inasmuch as it seems a little late, that particular device
has been rendered obsolete; and No, for precisely the same reasons.
Australia has so many instruments, institutions and customs, which
secure an array of rights, beyond the wildest dreams of Thomas
Jefferson, that it hardly needs a Bill of Rights. More importantly,
the argument that the ultimate mechanism in ensuring citizen participation
in society is to arm every citizen with rights displays a naiveté
about the needs of the political system.

The "rights" strategy is part
of a broader rights culture that has high expectations of individualised
justice. It views the citizen as the holder of rights. It places
great weight on one mechanism, the law, to achieve the objective.
Further, it suggests some form of final settlement of the question
of the well-being of citizens. In short, what looks like a remnant
of an earlier constitutional project, the Bill of Rights debate,
is in fact the vanguard of a broader citizenship strategy.

As an advocate of rights recently acknowledged:

"[t]he idea of a rights-based
society represents an immature stage in the development of a
free and just society ... a society whose values are defined
by reference to individual rights is by that very fact already
impoverished. Its culture says nothing about individual duty
--- nothing about virtue ... accordingly rights must be
put in their proper place. I think it is to be done by choosing
to regard them as a legal, not a moral construct".1

But if rights are merely a legal construct,
it is conceivable that such a society is asking too much of the
law. The law should enforce old majorities, consensus decisions
built over time. Its strength lies in the stability of its rule
making, its authority is derived from making the law apply consistently.
The more the law is used to seek justice, the more it will become
a political tool to be consumed and wielded. The rights strategy
may suit an electorate used to gaining its own way, and where
the law acts to restrain excess, all is well. Where the law encourages
excess all is not well. The discussion of an Australian Bill of
Rights needs to be couched in a wider analysis of the rights culture
and its use of the law. This is the purpose of this paper.

Australia's Bills of Rights: a game
for more than one player

Australia has Bills of Rights in the
form of the common law, the Constitution both expressly and implied,
Commonwealth and State statutes, and international instruments
to which Australia is a signatory. Principally these are:

1. A fundamental principle of the common
law tradition, the right to due process: "there are no circumstances
in which a man may be denied impartial justice".2

2. Expressly in the Constitution: s.80,
the right to trial by jury; s.116, religious freedom; s.117,
prevents discrimination on account of State residence; s.92,
free trade between the States; s.51 (xxxi), Commonwealth may
only acquire property on "just terms".

3. Implied in the Constitution, freedom
of political communication, procedural fairness in the exercise
of judicial power.3

4. Commonwealth anti-discrimination
statutes.4

5. Various international treaties which
the Commonwealth accesses through s.51(xxix), the "external
affairs" power.5

The criticism of this state of affairs
is that an as yet unspecified though presumed ultimate list of
rights is not guaranteed, meaning, is not beyond the reach of
Parliament. The solution to these failures is to have a consolidated
list of rights guaranteed by constitutional means. Whereas at
present the courts have no express power to review primary legislation,
a Bill of Rights would allow all legislation to be reviewed against
a broad menu. The more democratic proponents6 foresee
an intermediate step of statutory rights, on the grounds that,
under an entrenched set of rights, unelected judges would be given
too much power, and for fear that a Bill of Rights ethos "quashes
any sustained discussion of the common good".7
A non-entrenched set of rights has the appeal of maintaining democratic
primacy and the sovereignty of the Parliament within constitutional
bounds.

The undemocratic architecture of the
judiciary is only the first level of concern with the use of the
rights approach. A responsible forum like the Parliament, which
is unwilling or unable to constrain a non-responsible forum like
the courts, which has become populist by inclination, say through
implied rights, is a danger. An unconstrained judiciary invites
new and more customers, it beckons the triumph of the little citizen
against government and companies. A court, which constrains populism
in favour of the public good, has a worthy rationale; a populist
court has no such rationale.

Unfortunately, the non-entrenched strategy
may come unstuck. For example, in New Zealand the Bill of Rights
Act 1990 was enacted so as not to override other inconsistent
legislation and not allow the judiciary any invalidating power.
It was to be an ordinary statute to strengthen parliamentary scrutiny
of proposed legislation. The Court of Appeal in Baigent's Case8
took a different view and created ad hoc a previously unheard
of remedy of public civil liability. Adopting a Bill of Rights
as an ordinary statute appears to make no difference as to who
has the final say on rights.

The rights strategy is not confined
to the legal profession. A Parliament similarly infused with rights
talk is as likely as are the judges to make the errors of the
rights strategy. For example, a legislature which refers to vague
standards, such as fair, unconscionable, just and equitable simply
allows, indeed forces the judiciary to impose their own values.
The legislature can as easily play the rights game too, by writing
legislation which sounds attractive but leaves the decisions in
other less accountable hands. However, "if the legislature
enacts rules with precise meanings, it means that it is forced
to declare what will be the result of its policies in their application
to particular classes of case".9 In other words,
the use of rules or principles, which give direction to the courts,
keeps the policy decisions in the hands of the legislature and
out of the courts.

Keeping policy in the more responsible
forum is only half the issue. Whether Parliaments legislate standards
or rules, the fact is that "Parliaments attempt to legislate
for every conceivable detail".10 This, as much
as rights litigation, is a cause of an increase in litigation.
For example, the Commonwealth passed 221 Acts in 1973, and 204
in 1991. While the 221 Acts passed in 1973 covered 1,624 pages
of the statute book, the 1991 Acts took up 4,880. In 1998 there
were 106 Acts passed and the number of pages was 4,150.11
A consequence of the growth of legislation is a growth in the
amount of litigation. For example, in 1977, 322 cases were filed
in the General Division of the Federal Court. By 1997-98 the number
had risen to 2,665.12 In 1977, 48 civil special leave
applications were filed in the High Court. By 1997-98 this figure
had risen to 245. Special leave applications in criminal cases
rose from 66 in 1992 to 113 in 1997-98.13

Changing the forum does not foreclose
the difficulties of the rights agenda. Whether the legislature
or the legal profession holds the honours for an increase in litigation
is also immaterial. Clearly the law-making climate that seeks
to satisfy all comers is an environment in which rights flourish.
A Bill of Rights may fan the flames, but the fire is already lit,
and all law-makers, not just the judges, have to be watchful.

What is wrong with rights?

The essential critique of the Bill of
Rights rests not so much on democratic control, but on the weaknesses
of rights as an instrument to satisfy an electorate's needs. Rights
rely on the law to determine contested concepts. Rights are treated
as if they are not time and place specific, as if they are ahistorical.
The attempt to give rights precedence in public life assumes universality
and a moral certainty, which is not sustainable. Finally, though
not least important, is the practical record of the device, which
appears to be disappointing.

An ahistorical strategy

In the absence of other constitutional
devices and conventions, political institutions and culture, an
Australian Bill of Rights may have been useful. As things stand,
it does not recognise the enormously rich and stable array of
instruments, devices and cultures that have grown over two hundred
years of European settlement and the historical legacy of the
common law.

A rights approach does not answer the
question, who are to be the recipients of rights: individuals,
including or excluding foetuses, corporations, animals, or the
environment? For example, the US Bill of Rights may have been
state of the art at its inception, but it was fully two centuries
before women could vote at Federal elections! Clearly, the meaning
of a right is time and place specific. Furthermore, the right
having been won is unlikely to be undone, unless it offends a
considerable proportion of the community, at which time the courts
will be arraigned against the democracy. There is a sense in which
some things must never be undone; that is, locked away from future
generations. The difficulty is that such sentiment offends the
right of future generations to decide their own future, which
includes making their own mistakes.

A Bill of Rights mechanism may be justified
in the absence of the institutions and processes which are taken
for granted in Australia. For example, the Hong Kong Bill of Rights
exists where there is no fully representative democratic system
in place, or likely to develop with the resumption of rule by
the People's Republic of China. The Bill may act as a surrogate14
for democracy in these circumstances, though it is doubtful it
will carry much weight under a non-democratic entity. The rights
strategy depends ultimately on mechanisms of consent, which are
at the heart of democratic practice. Consent depends on a view
current among a large majority at a given time and place. Accepting
rules from other times and other places may not suit.

Asks too much of the law

Does a rights/litigation culture imply
the failure of other institutions? Rights will not provide "relief
from the heavy burden of political choice and institutional responsibility"15
that our political democracy has been designed to facilitate.
Rights and their use of the legal forum does not of itself provide
solutions to political or contested issues:

"The ideology of litigation ...
has something spurious to offer every political viewpoint. For
radicals it offers an unending pantomime of class struggle and
social upheaval, exposing the ultimate antagonisms between workers
and bosses, consumers and producers, husbands and wives in a
perfect orgy of consciousness-raising and grievance. For democrats
it promises to impose the social norms of common-man juries and
bring private concentration of private wealth and power to heel.
For conservatives it claims to mold anti-social defendants into
law-abiding citizens through the forms of a cherished tradition
of legal order. For boosters of economic prosperity it vows to
correct inefficiencies in markets and bring ultra-advanced business
techniques to the legal profession itself. For libertarians it
purports to defend individual rights against the coercive impositions
of the outside world".16

Our politics has already become highly
"judicialised", either by an increasing number of decisions
being taken in the courts or by the use of legal method in the
political arena. Law is coming to dominate public life, as well
as political life, so the question needs to be asked of the dangers
that lie in placing a heavy reliance on this mechanism to resolve
individual and societal problems. The delivery of rights by the
law runs the risk of having the law displace all other institutions,
which mould the way we live together. As Jenkins argues, "the
legal apparatus is being asked to do too much with too little
support: because other institutions such as the family, the church,
and the school, are not functioning as once they did to develop
character and define conduct".17

To the question, what is the role of
law in the enterprise of justice, Jenkins cautions:

"The conviction that men should
enjoy certain goods and attain certain ends does not mean that
through its institutions society either owes them to or can bestow
them upon its members. The knowledge that organised efforts are
required to achieve certain values does not entail that this
effort devolves upon or is within the reach of law".18

The requirement of law to decide substantive
political and moral questions displaces more fundamental aspects
of the law. Rights cannot make safe an unsafe conviction, cannot
unprejudice prejudiced juries or necessarily promote ethical behaviour
among the legal profession. These elements, which are the strength
of the legal method, have been sidelined. The emphasis on outcomes
rather than process is more likely to diminish ethical behaviour.
A win is equated to justice.

Relies on a moral certainty

Giving prominence to rights is to assume
that any right is so fundamental as to be incontestable. Clearly,
the right to life is contested, the right to vote is limited,
the right to free speech is limited, the right to welfare is an
insurance contract and may not be a right limited by obligation.
Rights as they seek to achieve justice suffer from the difficulty
that "justice stands as an empty and formless receptacle
that must receive its shape and substance from elsewhere".19
Human rights are nothing more than social goods, and as such cannot
escape some crucial questions.20

What particular group of rights is to
be recognised: procedural or substantive, individual or collective?
The rights of due processare generally treated differently
from substantive rights. "There are no circumstances in which
a man may be denied impartial justice ... most substantive rights,
on the other hand, are defeasible in the public interest".21
Others argue that substantive or material rights should be recognised
in order to allow the citizen to participate in society:

"This goal may require, either
imposing on the State an obligation to guarantee, or conferring
on individuals a right to ... a minimum level of income, ...
measures which ensure that people's health needs are met, ...
the provision of adequate housing, and ... the availability of
a broad range of cultural, recreational and leisure facilities".22

These objectives however rely heavily
on a view of citizenship based on the dominant value of equality
of opportunity as it applies to shared resources. This is a highly
contested base!

How is the scope and nature of each
right to be determined? The Australian Capital Television Case,23
where the High Court of Australia implied a right of freedom of
communication in the Australian Constitution, has its political
science critics.24 Its legal critics are just as severe:

"Judicially created 'human rights'
protected and benefited large media corporations. The latter,
not humans, were the aggrieved litigants. Commonwealth legislation
... enacted to provide individual electors time to think and
reflect free from media interference, was held unconstitutional
... Large, powerful and wealthy corporations were given constitutional
rights and protections. Smaller, poorer and weaker individuals,
who had gained legislative protection, were rendered constitutionally
vulnerable".25

No more so than Sir Stephen Sedley who,
a keen advocate of "a rights instrument ... to address ...
the imbalances and appropriations of power which threaten the
values ... of democracy",26 was scathing in his
criticism of the decision. He stated:

"Because democracy demands a free
flow of ideas, the court holds that to accord a hearing to ideas
in proportion to the wealth of those who hold them is not only
a democratic course but the only democratic course: and in doing
so it assumes a symmetry which simply does not exist between
freedom of speech and freedom of information".27

How is a clash of competing rights to
be adjudicated? The US Supreme Court in Roe v. Wade (1973)
was forced to find an implied right to privacy and balance
the right to life protected by the US 14th Amendment
in an abortion case. Its decision was essentially a mathematical
compromise.In the first trimester the state could not
interfere in the decision to abort. In the second trimester the
state could regulate the abortion procedure.In the third
trimester the state could forbid abortions. This is an admirable
piece of work in many respects but has no greater claim to moral
certainty than "balance".

Great victories

Does the record of achievement of Bills
of Rights justify the considerable risks inherent in their application?
Sir John Laws, commenting on the incorporation of the European
Convention on Human Rights into British law, noted its historical
context and its aspiration, "namely the protection of people
against lawless and violent abuses of power by an overwhelming
State".28 He rated the magnitude of the task as
follows:

"While the Gestapo and the death-camps
are the Convention's backdrop, its stage is now often a battleground
against much lesser devils, such as corporal punishment in schools".

Another writer, similarly in support
of a Bill of Rights also noted the limitations of its application:

"The abiding impression of the
first seven years of Bill of Rights jurisprudence [in New Zealand]
is the utter domination of criminal cases".29

The same was held to be true of Canada.
A less sympathetic view of the Canadian Charter was that it had
"extended well beyond influencing criminal law and procedure.
Quite bluntly, the judges are far more powerful, active and influential
in making social policy decisions than ever they were before 1982".30
Further, the New Zealand Bill of Rights Act has so many
grounds of discrimination, nearly fifty in all, that it caused
one wit to remark, "discrimination for the connoisseur".31

What has been won by a Bill of Rights
that has not been won by other means? The aspirations of Aboriginal
people in Australia have had to be satisfied to this point without
a Bill of Rights, in fact with a minimum of judicial intervention,
with of course the notable exception of the High Court decision
in Mabo. The achievements of Aboriginal people in their
"recovery"32 phase, particularly post-Mabo/Wik
is notable. Aboriginal people have enhanced political structures;
Land Councils and ATSIC, a differentiated economic base; Native
Title and the Indigenous Land Corporation, a recognised cultural
base; heritage legislation, a legal base; common law rights, anti-discrimination
statutes, and a welfare base; innovative and considerable funding,
for example, CDEP. Scrutiny of the enormous number of instruments
and programs in place indicates a job largely done. With the continued
support of the wider community, the recovery is now in the hands
of the indigenous community.

These considerable achievements however
do not appear to count in the face of the next phase of demands,
which centre on Reconciliation. The Council for Aboriginal Reconciliation
draft Document for Reconciliation33 includes a national
strategy to promote the recognition of Aboriginal and Torres Strait
Islander rights. It holds that these rights "will be based
on the principles that all Australians should share equal rights
and responsibilities as citizens". However, it continues:

"The strategy will recognise the
unique status of Aboriginal and Torres Strait Islander peoples
as the original custodians of Australia, their continuing cultures
and heritage, and their rights under the common law".

These aspirations are multi-dimensional,
and presumably need to be read in the context of the considerable
achievements of differentiation noted above. There are of course
two problems: the community has to accept the entire package,
that is all of those matters which are also listed in the strategies
to advance reconciliation, namely a national strategy for economic
independence, and to address disadvantage. These are clearly political
aspirations. The entire community will make judgments as to whether
Aboriginal people are indeed "a people"; whether they
can be equal and special, not just equal and different; and indeed
how long any of the measures for achieving a desired status should
remain. To press them into a legal context is asking too much
of a rights instrument. These claims are contestable, time and
place specific, resource intensive, in other words clearly not
rights that non-political forums can address.

A rights culture

The rights culture has many sources.
It arises from the explicit promotion of rights as a political
tool, from its utility as a basis for laying claim to the common
property of the welfare state, and the development of certain
concepts of the common law. Rights may have three quite different
goals: to promote the individual interest against authority or
organisation with power,34 the desire to have justice
tailored to every eventuality, and as part of a broader political
strategy --- a political strategy which sees the "I am my
brother's keeper" of the welfare state, changed to "everyone
else is my keeper". The ideas of justice held in common are
being displaced by the promise of a personal gain.

Citizenship

A source of theoretical justification
for the rights strategy is the citizenship theory of the welfare
state. The core of that theory is community membership:

"It is the source of the claims
we have against each other. From our membership in our community
flow the welfare rights we can assert and the duties we owe
to contribute to the support of our fellows".35

This means that it is appropriate to
treat all claims on society as if they were compensation claims.
"If some individuals benefit from a social process
which pushes others below the benchmark, compensation is
owed".36 In effect, all citizens have rights to
receive what they need to respect their status as full members
of society, irrespective of the reasons why they lack resources
and opportunities.

The basis of such a claim on society's
resources is at considerable variance with other common models
of the welfare state. Earlier models were the "Christian
duty" of state-provided charity of the Poor Laws in England,
and the "economy of altruism" of social insurance in
Bismark's Germany. More latterly has been the "enabling state",
the USA version of equal opportunity. More radical has been the
"citizenship" of Marshall and Beveridge, with social
security for everyone, and redistributive socialism, or the egalitarian
"reduction of relative poverty" state.37
Each of these models represented a dominant rationale, namely
equality, whether egalitarian, meritocratic or liberal, need,
altruism, or insurance.

The further development of the Marshall/Beveridge
citizenship model, relying more explicitly on rights, argues that
those with resources have a strict obligation to make them available
to those in need. Need is defined as those resources which guarantee
status as a full member of society. As the citizen does not have
a choice to join society, consent is not sought. It follows that
"I have some claim to be compensated for the fact that the
society in which I live is not one in which I can be independent".38
The further claim that "allowing a citizen to be cut off
from the community is more serious than a marginal limitation
on personal disposable income" helps to explain the high
expectation of recompense that exists in some quarters.

While duties exist alongside rights,
for example there is a duty to maintain one's health and to seek
gainful employment, the potential outcome of the citizenship theory
is that "society becomes solely the bearer of duties, with
no right to impose conditions on or to make demands of its members.
Individuals become solely the holders of rights, with no duty
to conform or contribute".39 The basis of democracy,
consent, is firmly shown the door.

Expectation of total justice

The desire for rights is driven by the
citizen's expectation of what Friedman40 calls "total
justice". It has three elements. Expectations of fair treatment,
"everywhere and in every circumstances". Expectations
of recompense, "that someone will pay for any or all calamities
that happen to a person". And expectations of due process,
that "no organisation or institution of any size should be
able to impair somebody's vital interests without granting certain
procedural rights". Fair treatment, recompense and procedural
rights are at the root of the drive for human rights. The drive
for total justice is the objective, and the rights strategy is
its vehicle. An alternative strategy needs to address the origins
of these elements of total justice.

The expectation of total justice is
well primed by various "bad habits" derived from the
common law. Decisions in torts and in contract, and in schemes
such as victim of crime compensation, contribute to the desire
for total and individualised justice. A recent study of trends
in the Australian legal system spoke of "an emerging litigious
mindset ... and a tendency to regard the legal system as a 'first
port of call' when championing rights and accountabilities".41

In the opinion of (now) Chief Justice
Gleeson,42 there is a trend in law, both judge-made
and statutory, towards a preference for individualised, discretionary
solutions as against the principled application of general laws.
This is largely a function of societal expectation, which looks
to the law to provide redress for an increasing number, and an
expanding scope of grievances, in a manner tailored to the justice
of the particular case.

In criminal law, originally anyone who
caused death, intentionally or accidentally, was guilty of murder.
In time the intention of the accused became the focus of concern;
for example, were there grounds on which the accused were less
culpable for their actions? The concepts of diminished responsibility
and of provocation became lines of defence against murder. The
central concept is one of temporary loss of self-control. It assumes
a sudden loss of self-control. The problem now is that it can
be very difficult to draw the line between a response to a prolonged
course of conduct which is a loss of self-control, and a response
that involves a deliberate and premeditated desire for revenge,
or for putting an end to a source of pain.

In the law of evidence, as a general
rule, facts in dispute at a trial are to be proved by the sworn
testimony of witnesses capable of giving direct evidence of such
facts, and whose evidence may be tested in cross-examination.
Assertions of fact made out of court were generally inadmissible,
unless they were sufficiently reliable or necessity dictated.
More recently, the hearsay rule might be applied more flexibly,
and individual trial judges might be confronted with the task
of making a discretionary decision, on a case-by-case basis, as
to the reception or rejection of hearsay evidence. Certainty will
be sacrificed to considerations of merit.

In the law of contract, people can seek
relief from an "unjust" (unconscionable, harsh or oppressive)
contract, based on the circumstances at the time of the making
of the contract. These circumstances may include poverty or need
of any kind, sickness, age, gender, infirmity, drunkenness, illiteracy
or lack of education, or lack of assistance or explanation. The
consequence is that claims that contracts are unjust are becoming
almost routine. The trouble with using unconscionability as a
panacea for adjusting any contract is that litigants may need
reminding that people should honour their contracts, even when
this involves hardship. Gleeson concluded:

"We can no longer say that, in
all but exceptional cases, the rights and liabilities of parties
to a written contract can be discovered by reading the contract".43

In the law of negligence, the concept
of reasonableness is of key importance, and the duty owed by one
person to another is greatly dependent on the facts of the case.
In the area of occupiers liability, for example, definition of
various categories of relationship between occupier and entrant
on land, with different standards of care, has given way to a
general standard. The standard is dependent for its application
upon the facts and circumstances of the individual case which,
therefore, in the event of dispute, require individual consideration.
It was the opinion of Lord Denning that "we have extended
the law of negligence to an altogether excessive degree".44

In the related area of personal injury,
and more radically, Atiyah asks, why should a right to sue someone
who wrongfully does you an injury exist?45He
noted thatright ideology assumes that everyone must be
answerable at law for his or her own actions, which is compensatory
justice. Left ideology assumes the injured victim should
be assisted, that the perpetrator, usually large corporations
or public bodies, be punished, which is distributive justice.

The current system is not a system of
personal responsibility, because those who are responsible are
hardly ever called to account or required to pay the damages.
It is actually a system of insurance, but those who benefit
do not pay the premiums. It is a system of distributive justice.
The reason for the increase in personal injury litigation is the
availability of liability insurance. It was thought fair that
the costs of the risks of injury should not be borne solely by
those at risk, but that others should be made to share or bear
the burden. Yet, tort actions are becoming more common and payouts
more spectacular.

Traditional corporate (and public sector)
liability has it that actions of a guilty employee are attributed
to the employer. Beyond motor vehicle accidents, the guilty party
rarely pays an insurance premium. The employer or insurer, who
is not to blame, pays the damages; the wrongdoer, who is to blame,
does not pay. It is taken for granted that an employer is vicariously
liable without any fault on his/her part for the negligence of
employees. The whole idea rests on the principle of "long
pockets"!

The Longford Royal Commission, reporting
on the causes of the explosion at the Esso gas plant in Gippsland
on September 25, 1998, concluded that neither the operators nor
supervisors were to blame, because they were ignorant of the dangers
present at the time. The company was blamed for failing to ensure
its staff was informed. The company failed to identify all hazards
and specify procedures for rectifying them.46 Why does
this result not surprise? Without wishing to doubt the Commissioner's
findings, is it conceivable that an entity other than a company
or government or other such organisation will ever not be held
liable for whatever event befalls people associated with it?

The analogy with the citizenship theory
of the welfare state is strong, to say the least. Atiyah was right
to question the need for the pretence of causation; the presence
of insurable risk, and the presumption that the individual is
part of the larger organisation whether the society or a company,
is sufficient to create a claim. And the action is not based on
compensation but on redistribution. The same may be observed of
the rights argument. The moral basis of rights is doubtful, but
a cause of action is sought against the state, which by means
of citizenship must make good any claim.

One further example illustrates the
point. Victims of crime have successfully invoked this "victim"
status, and have built on a public sympathy for crimes' victims
and a public antipathy to criminals. This has enabled this particular
class of claimant to sue for criminal damages (personal injury),
and where insufficient funds are available to seek statutory compensation.
In this example, the notions of compensation and redistribution
become entirely mixed. It raises the question, to what extent
do we socialise our misfortune? Should the state act as final
insurer in essentially private actions, and if in some cases why
not in others?

The theoretical rationale for crime
compensation is not strong. Injuries, where they prevent someone
from working are covered by Social Security. This does leave out
the non-workforce, with respect to compensation, though Medicare
covers medical costs. Which leaves the question: why should the
state provide compensation, that is, over and above income replacement
and medical expenses?

Does the state have a duty to protect
its citizens? This certainly involves the maintenance of law and
order, but compensating for injuries is a much greater step. Governments
do not accept that they are liable for the actions of criminals.
The risk of injury is so remote that the losses cannot be insured,
although tax could be raised to cover the insurance premiums of
all citizens. This does not answer the question why this source
of injury alone should be singled out. Is the system really a
"top-up" for a certain class of victim? That is, those
who have a common law action available but no "deep pockets"
to pay compensation.

These are examples of a preference for
the subjectivisation of issues and disdain for predictability
and formalism. However, there are important constraints of principle
upon the law's capacity to provide a form of justice that responds
to the peculiarities of every individual case. Some of these constraints
are bound up with the concept of justice itself.

It is expected of judges that they will
apply neutral and general principles to the resolution of individual
disputes. They have no mandate to act as ad hoc legislators
who, by decree, determine an appropriate outcome on a case-by-case
basis.

"No judge has, and no judge aspires
to political legitimacy. It is wrong to assume that, running
throughout the law, there is some general principle of fairness
which will always yield an appropriate result if only the judge
can manage to get close enough to the facts of the individual
case".47

Justice Gleeson may not be correct that
no judge has aspired to political legitimacy, but his point about
driving the law beyond its capacity to deliver justice is well
made. The common law may well be adding its bad habits to the
already high expectation of justice, an expectation which feeds
the rights strategy.

Conclusion

The Bill of Rights argument is a surrogate
for a broader rights and citizenship debate. The entrenchment
or otherwise of rights is not determinant; the nature of the rights
themselves is the issue, not the architecture. Procedural rights
are universal, but substantive rights, especially those with resource
implications, are not; these require political consent. In both
private actions, and in the welfare state, obligation and contribution
will have to be re-introduced as an antidote to the rights strategy,
this time around free of the divisions of race and gender, and
hopefully in a way not to re-ignite class struggle. The idea that
everyone else is my keeper will have to be challenged directly.
Law-makers, both judicial and legislative, will have to invoke
rules rather than values. There is no theory of just legislation,
only the agreement to processes of evaluation and negotiation,
consensus and rebuttal. An intellectual process to be sure, but
not one for all seasons or places or all time.

Liberals and socialists, or more accurately
meritocrats and redistributionists, seem to be swapping sides.
The socialists are happy to advance the cause of individual (and
group) justice if there is a reward to be had, and if the device
is effective in the cause of redistribution. And the liberals
are wary of the free rein of individuals to pursue through the
courts their view of justice. They worry that claims for compensation
are in fact claims in disguise for redistribution, and represent
a free bite at the collective cherry.

The rights strategy is an immature stage
in the development of democracy, and is a corruption of the objects
of participation. Its method to achieve the just society will
fail.

5. The International Convention
on the Elimination of All Forms of Racial Discrimination,
the International Covenant on Civil and Political Rights,
various International Labour Organisation Conventions
and so on.

6. F Brennan, Legislating Liberty:
A Bill of Rights for Australia, University of Queensland
Press, 1998. G Williams, The Federal Parliament and the Protection
of Human Rights, Research Paper 20, Parliament of Australia,
Parliamentary Library, 1999.

7. Brennan, op. cit., p.175.

8. J Allan, The Rise of Judicial
Activism in New Zealand, in Agenda, 1997, 4(4), p.468.

9. M McHugh, The Growth of Legislation
and Litigation, in The Australian Law Journal, 1995,
69, p.43.

10. McHugh, op. cit., p.38.

11. http://www.aph.gov.au/house/pubs/wots/wots98a.pdf

12. Federal Court of Australia, Annual
Report 1997-98, p.97.

13. High Court of Australia, Annual
Report 1997-98. Available athttp://www.hcourt.gov.au/98report/98ar.htm

14. J Allen and R Cullen, A Bill
of Rights Odyssey for Australia, in The University of
Queensland Law Journal, 1997,19(2), p.191.

15. A Hutchinson, Waiting for Coraf:
A Critique of Law and Rights, University of Toronto Press,
1995.

24. T Moore and G Maddox, Rights,
Jurisdiction and Responsible Government: The Spectre of Capital
Television, Journal of Commonwealth and Comparative Politics,
1995, 33(3), pp.400-415. Also H Patapan, Rewriting Australian
Liberalism: The High Court's Jurisprudence of Rights, in
Australian Journal of Political Science, 1996, 31(2),
pp.225-242.

25. J Thomson, An Australian Bill
of Rights: Glorious Promises, Concealed Dangers, in Melbourne
University Law Review, 1994, 19, p.1062.

41. The Allan Consulting Group, Trends
in the Australian Legal System: Avoiding a More Litigious Society,
Melbourne: The Allan Consulting Group Pty Ltd, 1998, p.3.

42. A Gleeson, Individualised Justice:
The Holy Grail, in The Australian Law Journal (1995),
69, pp.421-432.

43. Ibid., p.428.

44. Quoted in R Heuston, An Overview
of the Law of Negligence, in Burns, P T (ed.),Donoghue v. Stevenson and the Modern Law of Negligence: the
Paisley Papers. Vancouver: Continuing Legal Education Society
of British Columbia, 1991.